Reply Brief — Raul Villarreal and Fidel Villarreal, Petitioners v. United States

No. 18-5468

IN THE SUPREME COURT OF THE UNITED STATES

__________________________________

__________________________________

FIDEL VILLARREAL AND

RAUL VILLARREAL,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________

__________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________________

________________________________

REPLY BRIEF FOR PETITIONERS

DAVID J. ZUGMAN

BURCHAM & ZUGMAN

402 West Broadway, Suite 1130

San Diego, California 92101

Telephone (619) 699-5931

dzugman@gmail.com

BENJAMIN L. COLEMAN

Counsel of Record

COLEMAN & BALOGH LLP

1350 Columbia Street, Suite 600

San Diego, California 92101

Telephone (619) 794-0420

blc@colemanbalogh.com

Counsel for Raul Villarreal

Counsel for Fidel Villarreal

TABLE OF CONTENTS

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. The government concedes a conflict within the circuits as to whether

departures from the guidelines are subject to independent appellate review,

and it ignores the developments in this Court’s case law, specifically

Molina-Martinez and Rosales-Mireles, in arguing against review... . . . . . . . . . . . 2

II. With respect to the constitutional limits on the use of acquitted and

dismissed conduct at sentencing, the government ignores the question

presented as it relates to the reasonableness of a sentence under 18 U.S.C.

§ 3553(a), and, as to the Sentencing Guidelines aspect of the question,

the government’s reliance on Watts is misplaced because that opinion did

not address dramatic increases under the guidelines... . . . . . . . . . . . . . . . . . . . . . . 4

III. With respect to the use of acquitted and dismissed conduct at

sentencing under non-constitutional principles, the government over-reads

18 U.S.C. § 3661 and fails to cite any authority undermining petitioners’

interpretation of 18 U.S.C. § 3553(a)(6)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

i

TABLE OF AUTHORITIES

CASES

Gamble v. United States,

138 S. Ct. 2707 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Jones v. United States,

135 S. Ct. 8 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Molina-Martinez v. United States,

136 S. Ct. 1338 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,4

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Booker,

543 U.S. 220 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Farias,

469 F.3d 393 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Gobbi,

471 F.3d 302 (1st Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Watts,

519 U.S. 148 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,5

United States v. White,

551 F.3d 381 (6th Cir. 2008) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . 6

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STATUTES

18 U.S.C. § 3553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,4,7,8

18 U.S.C. § 3661. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,7,8

28 U.S.C. § 994. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RULES

U.S.S.G. § 2L1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iii

INTRODUCTION

Petitioners have presented three questions concerning federal

sentencing law worthy of review. With respect to the first issue regarding whether

departures from the Sentencing Guidelines are subject to independent appellate

review, the government’s brief (“Gov. Br.”) concedes that there is conflict in the

circuits, and it otherwise ignores the developments in this Court’s precedent, see

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018); Molina-Martinez v.

United States, 136 S. Ct. 1338 (2016), in arguing against review. With respect to

the constitutional limits on the use of acquitted and dismissed conduct at

sentencing as implicated by the second question presented, the government

ignores the issue as it relates to the reasonableness of a sentence under 18 U.S.C. §

3553(a); the government also erroneously relies on United States v. Watts, 519

U.S. 148 (1997) as to the Sentencing Guidelines aspect of the question presented

because that opinion did not address dramatic increases under the guidelines. As

for the use of acquitted and dismissed conduct at sentencing under nonconstitutional principles, the government over-reads 18 U.S.C. § 3661 and fails to

cite any authority undermining petitioners’ interpretation of 18 U.S.C. §

3553(a)(6). In the end, the government does not dispute the importance of the

issues presented, as they are obviously critical to the administration of criminal

justice. The Court should grant the petition.

ARGUMENT

I. The government concedes a conflict within the circuits as to whether

departures from the guidelines are subject to independent appellate review,

and it ignores the developments in this Court’s case law, specifically MolinaMartinez and Rosales-Mireles, in arguing against review.

The government concedes that the “courts of appeals have taken

different approaches to the review of sentences involving potential departures

under the Guidelines[,]” Gov. Br. 11, and recognizes that the Ninth Circuit’s

approach, which prohibits appellate review of departures, is in the distinct

minority. Id. at 12. The government also does not dispute that this conflict is

important; indeed, the conflict results in disparate treatment of federal sentencing

appeals throughout the country. The Solicitor General, however, contends that

review is not warranted for essentially two reasons.

First, the government asserts that this Court has previously denied

other “petitions seeking review of the circuits’ different approaches to review of

Guidelines departures.” Id. at 12. The four petitions cited by the government

were all filed before Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018), and

three of the four were filed before Molina-Martinez v. United States, 136 S. Ct.

1338 (2016). By failing to argue otherwise, the Solicitor General apparently

concedes that the Ninth Circuit’s minority approach is inconsistent with RosalesMireles and Molina-Martinez. Given the developments in this Court’s precedent,

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the timing is now right to resolve the conflict and to eliminate the flawed approach

taken by the Ninth Circuit.

Second, the government maintains that the Ninth Circuit reviewed the

sentencing claims raised by petitioners. Gov. Br. 13-14. But the Ninth Circuit

only reviewed those claims that petitioners could bring under Ninth Circuit law.

Under the governing circuit precedent, petitioners could not challenge the legal

validity of the upward departures, all of which were granted over their objections,

and therefore asked the Ninth Circuit to overrule its case law prohibiting review.

Their request was silently rejected. This Court should overrule the Ninth Circuit’s

precedent so that petitioners can be afforded the opportunity to obtain appellate

review of the legal validity of the upward departures that were imposed by the

district court over their objections, an opportunity that they have never had.1 The

limited scope of review performed by the Ninth Circuit is reflected in its analysis

that any guidelines errors were inconsequential because “the district still would

have selected the same ultimate sentences” as the “primary drivers behind the

lengthy sentences were Defendants’ abuse of their positions and their efforts to

obstruct justice.”

1

As pointed out by the government, Gov. Br. 14, the Ninth Circuit did

review the bodily injury guidelines increase, but that was because the increase was

a “specific offense characteristic,” U.S.S.G. § 2L1.1(b)(7), not a “departure,” and

therefore was subject to appellate review under Ninth Circuit precedent.

3

Even the limited review conducted by the Ninth Circuit was

inconsistent with Rosales-Mireles and Molina-Martinez, and the government does

not dispute that any guidelines errors in imposing the upward departures would

result in prejudice. See Molina-Martinez, 136 S. Ct. at 1347-48. Thus, this case is

a good vehicle to review the acknowledged split in the circuits.

II. With respect to the constitutional limits on the use of acquitted and

dismissed conduct at sentencing, the government ignores the question

presented as it relates to the reasonableness of a sentence under 18 U.S.C. §

3553(a), and, as to the Sentencing Guidelines aspect of the question, the

government’s reliance on Watts is misplaced because that opinion did not

address dramatic increases under the guidelines.

The government does not address the “reasonableness” aspect of

petitioners’ request for review of the use of acquitted and dismissed conduct at

federal sentencing proceedings. In other words, the government only addresses

the Sentencing Guidelines aspect of the question presented and ignores whether

acquitted and dismissed conduct can constitutionally be used to demonstrate the

reasonableness of a sentence under 18 U.S.C. § 3553(a). See Jones v. United

States, 135 S. Ct. 8 (2014) (Scalia, J., joined by Justices Thomas and Ginsburg,

dissenting from the denial of certiorari). As explained in Jones, the time for

review of the reasonableness question is long overdue, and the government has no

specific response to the interplay between § 3553(a) and the Fifth and Sixth

Amendments.

4

Even as to the Sentencing Guidelines aspect of the question

presented, the government’s response is flawed. The Solicitor General contends

that the question presented for review has already been resolved by United States

v. Watts, 519 U.S. 148 (1997), although it recognizes that Watts was focused on

the Double Jeopardy Clause, not the Sixth Amendment. Gov. Br. 15-16. Even

putting this important distinction aside, see United States v. Booker, 543 U.S. 220,

240 n.4 (2005), the government is incorrect when it contends that Watts applies to

dramatic increases under the guidelines. Gov. Br. 16. This Court specifically

stated in Watts: “We acknowledge a divergence of opinion among the Circuits as

to whether, in extreme circumstances, relevant conduct that would dramatically

increase the sentence must be based on clear and convincing evidence. The cases

before us today do not present such exceptional circumstances, and we therefore

do not address that issue.” Watts, 519 U.S. at 156-57 (footnote omitted).

While this limitation focused on the conflicting views in the lower

courts regarding the standard of proof for dramatic guidelines increases, it

certainly demonstrates that Watts did not present the question of dramatic

increases under the guidelines. Because Watts was focused on the Double

Jeopardy Clause, rather than the Sixth Amendment, and did not present dramatic

increases under the guidelines, it could not have resolved the question presented

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for review in this case, where petitioners have raised a Sixth Amendment

challenge to dramatic increases under the guidelines.

The government notes that the lower courts have unanimously held

that acquitted conduct can be used to support guidelines increases. Gov. Br. 1617. The opinions cited generally did not involve dramatic increases. See, e.g.,

United States v. Gobbi, 471 F.3d 302, 313-14 (1st Cir. 2006) (2-level increase for

gun possession); United States v. Farias, 469 F.3d 393, 399-400 (5th Cir. 2006)

(same). To the extent that they did, they failed to recognize the limitation noted in

Watts, see, e.g., United States v. White, 551 F.3d 381, 383-86 (6th Cir. 2008) (en

banc); United States v. Mercado, 474 F.3d 654, 656-57 (9th Cir. 2007), and were

met with vigorous dissent. See White, 551 F.3d at 386-97 (Merritt, J., dissenting);

Mercado, 474 F.3d at 658-65 (Fletcher, J., dissenting). Similarly, the petitions

cited by the government where this Court denied review, see Gov. Br. 17-18,

generally failed to focus on the fact that Watts did not address dramatic guidelines

increases. In any event, this Court has recently granted review to reconsider its

Double Jeopardy jurisprudence despite the unanimous view of the lower courts

and despite denying review in prior petitions, see Gamble v. United States, 138 S.

Ct. 2707 (2018), and reconsideration of the Double Jeopardy opinion in Watts is

no less deserving given the dissenting views expressed by several circuit judges.

6

Finally, the government appears to concede, as it must, that this case

involves dramatic increases under the guidelines. The government also appears to

concede that there are no preservation problems and that this case is an excellent

vehicle to resolve the question presented. The issue presented is obviously

important, and the government does not contend otherwise. For all of these

reasons, this Court should grant review.

III. With respect to the use of acquitted and dismissed conduct at sentencing

under non-constitutional principles, the government over-reads 18 U.S.C. §

3661 and fails to cite any authority undermining petitioners’ interpretation of

18 U.S.C. § 3553(a)(6).

The government does not cite any precedent in support of its view

that, as a matter of statutory law, the reasonableness of a sentence under § 3553(a)

can be based on acquitted conduct. Gov. Br. 18-19. The government does not

have a convincing response to the language in § 3553(a)(6), which specifically

references convicted conduct, and instead solely relies on 18 U.S.C. § 3661, Gov.

Br. 19, a statute in a different chapter of Title 18. The government over-reads §

3661, which does not answer the question presented.

Section 3661 states that “[n]o limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661

7

(emphases added). The statute specifically mentions “a person convicted of an

offense[,]” and that language should be given some meaning and not rendered

mere surplusage. In other words, there is a textual basis for concluding that §

3661 does not give a court carte blanche to consider acquitted conduct.

Furthermore, the statute assumes the purpose of imposing an “appropriate”

sentence, and the question presented is whether and to what extent acquitted

conduct can be used appropriately. There are limitations on the information that a

sentencing court can consider. For example, a sentencing court cannot consider a

defendant’s race, sex, or national origin in determining a sentence. See 28 U.S.C.

§ 994(d). Section 3661 should be considered in conjunction with other parts of

the statutory scheme, and this Court can interpret the scheme as limiting the

consideration of acquitted conduct to avoid the constitutional question.

In any event, even if a sentencing court can consider acquitted

conduct under § 3661, that does not mean that such conduct can be relied upon to

determine the reasonableness of a sentence under § 3553(a). In other words, under

§ 3553(a)(6), an offense of conviction presumably generates a range of reasonable

sentences for a defendant with a particular record. A sentencing court may be able

to consider acquitted conduct in deciding to impose a sentence at the high end of

that range of reasonableness. The statutory scheme, however, does not permit a

8

sentencing court to rely on acquitted conduct to sentence a defendant above the

high end of that range of reasonableness.

In sum, while petitioners urge this Court to address the important

constitutional question presented by their petition, it can also avoid the question

by limiting the use of acquitted and dismissed conduct under non-constitutional

principles. See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008)

(Kavanaugh, J.); see also United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015)

(Kavanaugh, J., concurring in the denial of rehearing en banc). Both the

constitutional and non-constitutional questions presented merit review.

CONCLUSION

For the foregoing reasons, this Court should grant the petition for

a writ of certiorari.

Dated: November 2, 2018

Respectfully submitted,

s/Benjamin L. Coleman

DAVID J. ZUGMAN

BURCHAM & ZUGMAN

402 West Broadway, Suite 1130

San Diego, California 92101

Telephone (619) 699-5931

dzugman@gmail.com

BENJAMIN L. COLEMAN

Counsel of Record

COLEMAN & BALOGH LLP

1350 Columbia Street, Suite 600

San Diego, California 92101

Telephone (619) 794-0420

blc@colemanbalogh.com

Counsel for Raul Villarreal

Counsel for Fidel Villarreal

9